IN THE CASE OF:	  

		BOARD DATE:	        09 DECEMBER 2008

		DOCKET NUMBER:  AR20070012724 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his date of rank (DOR) to captain (CPT) be corrected from 17 August 2007 to 7 February 2006.  

2.  The applicant essentially states that the United States Army Human Resources Command (USAHRC) is misapplying Section 512 of the 2002 National Defense Authorization Act (NDAA) by only granting him a civilian education waiver for promotion consideration only.  He also states, in effect, that the legal determination that the USAHRC is allowed to be more stringent than the law is without merit in this case.  He further states that the law does not grant any Secretarial discretion in complying with Title 10 of the United States Code or Section 512 of the 2002 NDAA, and that this fact is solidified in previous Army Board for Correction of Military Records (ABCMR) cases.  He continued by essentially stating that he was forced to curtail completion of his civilian education during flight school and during a deployment, and that reasons such as this are part of the rationale for Section 512 of the 2002 NDAA.  

3.  The applicant provides a memorandum, dated 23 September 1999, which appointed him as a Reserve commissioned officer of the Army; two DD Forms 214 (Certificate of Release or Discharge from Active Duty) which covered his active duty service from 11 September 1999 to 15 December 1999 and from 
16 January 2003 to 23 May 2004; certificates awarding him the Air Medal and the Bronze Star Medal; a memorandum, dated 2 February 2006, which informed the applicant that he was selected for promotion to CPT by a Department of the Army Reserve Components Selection Board that convened on 7 November 2005; a diploma showing that he was awarded his baccalaureate degree on 
17 August 2007; orders, dated 23 August 2007, which promoted him to CPT with a date of rank and effective date of 17 August 2007; a memorandum, dated 
24 October 2005, from the USAHRC which granted him a civilian education waiver for promotion consideration only; information from Title 10, United States Code and Section 512 of the 2002 NDAA; a report of the Committee on Armed Services from the House of Representatives regarding the NDAA for fiscal year 2002; his Officer Evaluation Reports for the periods 17 December 1999 through 16 December 2000, 13 April 2002 through 13 January 2003, 14 January 2003 through 13 January 2004, 14 January 2004 through 15 May 2004, 16 May 2004 through 15 May 2005, and 16 May 2005 through 1 March 2006; and the redacted Record of Proceedings from ABCMR Docket Numbers AR20060004733 on 
17 August 2006, AR2004100669 on 7 October 2004, AR20050002346 on 
27 October 2005, AR20050005727 on 18 January 2006, and AR20060004124 on 26 October 2006 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 13 August 1986, and served on active duty until he was honorably released from active duty on 12 May 1988 under the fiscal year 1988 Early Transition Program and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  However, he reentered active duty on 11 September 1999 to attend Officer Candidate School (OCS).  He was honorably released from active duty on 15 December 1999, and on 16 December 1999, he was commissioned a second lieutenant in the USAR in the Aviation branch and ordered to active duty.   
2.  The applicant was promoted to first lieutenant on 7 February 2002 after completing his officer basic course (OBC).    

3.  As the applicant's DOR to 1LT was 7 February 2002, his promotion eligibility date (PED) to CPT, under direction of the Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs) (PDASA [M&RA]) for promotion consideration 12 months sooner than the current schedule, was 6 February 2006.  

4.  During the processing of this case, an advisory opinion was obtained from USAHRC Special Actions Branch in St. Louis, Missouri.  That office essentially opined that the applicant was considered and selected by the 2005 CPT Department of the Army Reserve Components Selection Board with a civilian education waiver, and that he was promoted to CPT with a DOR of 17 August 2007, which was the date he completed his baccalaureate degree.  That office also stated that the applicant's PED for CPT was 6 February 2007, not 
7 February 2006 as the applicant stated in his application.  This advisory opinion also stated that the applicant's argument is that the USAHRC has misinterpreted the 2002 NDAA of Title 10, United States Code, section 12205.  However, it also stated that in accordance with section 512 of the 2002 NDAA, the Secretary of the Army may, on a case-by-case basis, waive the baccalaureate degree requirement to Title 10, United States Code, section 12205(a) for any officer who was commissioned through the OCS.  It further stated that the waiver may be in effect for no more than 2 years after the waiver is granted, and upon completion of the baccalaureate degree, officers must provide documented proof so the promotion memorandum can be issued.  Additionally, it stated that the applicant cited a paragraph from the NDAA report of the House or Representatives, but that the verbiage in Title 10, United States Code, section 12205 has not changed, and that their office correctly followed the guidelines of the law and promoted him when he was awarded his baccalaureate degree.

5.  A copy of this advisory opinion was forwarded to the applicant for comment and/or rebuttal.  On 20 February 2008, the applicant sent an e-mail essentially indicating that he would be submitting a rebuttal to the advisory opinion, and that he would like to appear in person before the ABCMR when his case is considered.  He also stated, in effect, that there were numerous errors in the advisory opinion, namely:

	a.  where the advisory opinion stated that he incorrectly stated his PED as February 2006 and that it was actually February 2007, this statement does not take into account promotion policy changes implemented in 2005.  He also states that as he was promoted to 1LT in February 2002, his initial PED to CPT was February 2007.  However, in 2005, the PDASA (M&RA) directed the acceleration of promotion consideration to CPT for the Army Promotion List (APL), Army Medical Department (AMEDD), and Chaplain Army Reserve competitive categories and, that as a result, his PED was changed to February 2006.  He further essentially questions why he would be considered for promotion in November 2005 if his PED was not until February 2007;

	b.  his DOR to 1LT should be corrected to 15 December 2001 because he was attending the Aviation OBC on that date, and that in accordance with Army Regulation 135-155, as he was enrolled in OBC on his PED to 1LT, his promotion date incorrectly reflects the date he completed OBC and not his eligibility date in accordance with Army Regulation 135-155;

	c.  that the substantiating argument put forth by the advisory opinion does little more than provide an opinion that is based on that office's and the USAHRC's internal policies regarding the interpretation of Federal law.  He also states that the question stands, despite the USAHRC advisory opinion, of whether that command can, on its own, implement a promotion policy that is more restrictive than that provided by public law;

	d.  although the advisory opinion states that the Office of Promotions correctly followed the guidelines of the law and promoted him when he was awarded a baccalaureate degree, in order to substantiate their argument, paragraph two of the advisory opinion further stated "Upon completion of the baccalaureate degree, officers must provide documented proof so the promotion memorandum can be issued."  The applicant states that nowhere in Title 10, United States Code, section 12205 or section 512 of the 2002 NDAA is the verbiage "so the promotion memorandum can be issued," and that this statement is an arbitrary addition by the Office of Promotions.  Further, none of the documentation provided with the advisory opinion, namely, an extract of Department of Defense Instruction 1215.17 (Educational Requirements for Appointment of Reserve Component Officers to a Grade Above First Lieutenant or Lieutenant [Junior Grade), and the 2002 NDAA, makes that statement;

	e.  the exact wording of the law does not imply that a waiver will be for "promotions consideration only" nor does it specify "so the promotion memorandum can be issued."  He also contends that it is clear and unmistakable that the waiver is for "appointment to a grade above 1LT" which is the promotion itself, and that once a waiver is approved, the officer then has 2 years to complete the requirement or face discharge;

	f.  that the advisory opinion also misinterpreted the NDAA report that he included with his application in that they thought that he submitted it as the actual law, and that they failed to understand what the report even was.  The applicant also stated that the report he enclosed was the intent of each of the section in the 2002 NDAA written by the House of Representatives, and that it established the intent for allowing a waiver of the baccalaureate requirement for promotion and not only for promotion consideration; and

	g.  the USAHRC's contends that they can be more stringent than the law.  However, given the specificity of the verbiage in Title 10, United States Code and section 512 of the 2002 NDAA, it is obvious that the USAHRC's logic does not apply.  He also states, in effect, that in ABCMR Docket Number AR2004100669, the ABCMR determined that the intent of the law was clearly to provide a blanket waiver of the civilian education requirement to officers in a specific category [it was noted that this case involved a CPT promoted prior to 1 October 1995 without a baccalaureate degree under Title 10, United States Code, section 12205b(4), which is a different category than the applicant].

6.  The applicant provided a certificate showing that he was awarded the Bronze Star Medal for exceptionally meritorious service during Operation IRAQI FREEDOM from 23 March 2003 to 23 March 2004.

7.  Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the maximum years of service in grade so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  

8.  Table 2-1 of Army Regulation 135-155, in effect at the time, established that the maximum years of service in grade for a 1LT to be promoted to CPT was 5 years.  However, in 2005, the PDASA (M&RA) directed the acceleration of promotion consideration to CPT for the APL, AMEDD, and Chaplain Army Reserve competitive categories, which resulted in Army Reserve officers being considered for CPT 12 months sooner that the current schedule.

9.  Title 10, United States Code, Section 12205(a) provides that no person may be appointed to a grade above the grade of 1LT in the Army Reserve, Air Force Reserve, or Marine Corps Reserve or to a grade above the grade of lieutenant (junior grade) in the Navy Reserve, or be federally recognized in a grade above the grade of first lieutenant as a member of the Army National Guard or Air National Guard, unless that person has been awarded a baccalaureate degree by a qualifying educational institution. 

10.  Title 10, United States Code, Section 12205(d)(1) provides that the Secretary of the Army may waive the applicability of subsection (a) above to any officer whose original appointment in the Army as a Reserve officer is through the Army Officer Candidate School program.  Section 12205(d)(3) provides that any such waiver shall be made on a case-by-case basis, considering the individual circumstances involved, and may continue in effect for no more that 2 years after the waiver is granted.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR to CPT should be corrected from 
17 August 2007 to 7 February 2006.  

2.  The applicant's contention in his application surrounding his promotion eligibility to 1LT, although not formally requested, was considered.  However, the applicant incorrectly applied guidance for OADO officers in Table 2-2, Note 1 of Army Regulation 135-155 to have applied in his case.  However, as the applicant immediately entered active duty upon his appointment, he was not assigned to the USAR Control Group (OADO) at the time and, as a result, does not apply to the applicant's case.  

3.  The applicant's contentions regarding his promotion to CPT were carefully considered, and found to lack merit.  While the applicant cited several previous ABCMR cases, none of these cases are of the exact same type of situation as his.  

4.  The USAHRC granted him an educational waiver only for promotion consideration to CPT and not the promotion itself, with the understanding that  the baccalaureate degree must have been obtained within 2 years of the date the waiver was granted.  

5.  The civilian education exception granted to Army OCS graduates by 10 USC 12205(d), clearly provide waivers of the civilian education requirement for a baccalaureate degree to Army OCS graduates on a case-by-case basis.  However, 12205(a) of that Statute clearly states that no person may be appointed above the rank of first lieutenant unless that person has been awarded a baccalaureate degree by a qualifying educational institution.

6.  As a result, the applicant was able to be selected for promotion with an educational waiver instead of being twice nonselected for promotion and subsequently being discharged.  Once he received his degree, provided it was within the 2-year period of the waiver, he could be promoted on the date the degree was conferred.

7.  Therefore, until such time as the law (10 USC 12205(a) is changed to specifically allow individuals to be promoted above the rank of first lieutenant without a baccalaureate degree, there appears to be no basis to grant his request.  To do so would afford him a benefit not afforded others in similar circumstances.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States in the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.





      _________XXX_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070012724



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ABCMR Record of Proceedings (cont)                                         AR20070012724



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